No codified law, only conscience: India's judicial recusal doctrine

With no statutory framework, judicial recusal in India hinges on ethics and precedent, balancing impartiality with duty amid concerns over litigant-driven bench selection

In one of the first cases of its kind, former Delhi Chief Minister and Aam Aadmi Party's national convenor Arvind Kejriwal, and five others, had filed a plea in the Delhi High Court seeking that Justice Swarna Kanta Sharma, who was hearing the case, recuse herself. Kejriwal had, in his plea, said that he did not expect a fair hearing before Justice Sharma.

 

The Delhi HC judge, however, rejected the plea and refused to recuse herself from hearing the excise policy case. In her judgment, she also noted that the application for recusal created an unusual legal situation where any outcome would be questioned by the applicant, describing it as a “Catch-22 situation.”

 

 

Judicial decisions, she said in her judgment, cannot be influenced by perceptions or assumptions and must rest solely on legal and factual grounds.

 

While both Kejriwal and Justice Sharma exercised the right provided to them under India's constitutional framework, experts believe that the situation highlighted a crucial gap: there is no codified statutory regime governing judicial recusal.

 

The doctrine of recusal draws its authority from constitutional conventions, common law principles, and the foundational tenets of natural justice, leaving judges to navigate a delicate balance between impartiality and their duty to decide.

 

“The governing jurisprudential touchstone remains the maxim nemo judex in causa sua, that is, no one should be a judge in their own cause,” said Yash Joglekar, counsel in the Bombay High Court, explaining that the doctrine extends beyond actual bias to situations where a fair-minded observer may reasonably apprehend partiality.

 

Pointing to the Supreme Court’s ruling which clarified that the test is not whether bias exists, but whether it appears to exist, Joglekar said that this emphasis on perception is central to the doctrine’s purpose, preserving institutional legitimacy and public confidence in the justice delivery system.

 

At the same time, courts have repeatedly warned against litigant-driven attempts to engineer recusals.

 

“Recusal therefore remains an exercise rooted substantially in judicial conscience, constitutional propriety, and institutional discipline,” Joglekar noted, adding that it must be weighed against the equally important “duty to sit.”

 

Grounds and limits of recusal

 

Law experts underline that recusal is typically invoked where a judge’s continued presence may create a legitimate perception of compromised neutrality. The most settled category remains pecuniary interest—where a judge has a direct or indirect financial stake in the outcome.

 

“Common grounds include financial interest, family or personal relationships, or prior professional involvement such as having appeared as counsel in the same matter,” said Apeksha Lodha, partner at Singhania & Co, adding that Supreme Court decisions have emphasised that the key question is whether a litigant can reasonably apprehend bias, not whether bias is actually proven.

 

The doctrine, however, is not without limits, as courts have frequently drawn a clear line between legitimate concerns and speculative allegations.

 

“Recusal is not about comfort—it is about institutional integrity,” said Anushkaa Arora, founder of ABA Law Office, noting that ideological disagreements or prior adverse observations do not ordinarily justify withdrawal.

 

This caution stems from a growing concern over “bench hunting”, a practice where litigants seek to disqualify judges to secure a more favourable forum. The Supreme Court has repeatedly warned that recusal cannot become a litigation strategy to subvert roster discipline.

 

Global principles, Indian practice

 

The absence of a statutory framework has meant that India relies heavily on ethical guidelines and judicial precedents.

 

“There is no codified law governing recusal of judges in India. The framework is based on natural justice, judicial ethics and case law,” said Harsh K Sharma, founder and head of Prosoll Law. He pointed to the Supreme Court’s ruling which distinguishes between automatic disqualification in cases of financial interest and a more nuanced “reasonable apprehension” test in other situations.

 

Internationally, the Pinochet case introduced an additional ground where a judge’s association with a cause linked to a party could warrant disqualification.

 

Ethical norms have also been articulated through instruments such as the Restatement of Judicial Values (1999) and the Bangalore Principles of Judicial Conduct (2002), which emphasise that impartiality applies not only to decisions but also to the process by which they are reached. These principles require judges to step aside where impartiality may reasonably be questioned, while also cautioning against overuse of recusal.

 

Significantly, courts have observed that reasons for recusal should ideally be indicated to avoid speculation and maintain transparency. At the same time, judges must resist undue pressure.

 

“Judicial officers are required to administer justice without fear or favour and must not encourage parties to believe they can choose the Bench,” Sharma added.

 

Flashpoints that shaped the debate

 

Several high-profile episodes have brought the recusal doctrine into sharp public focus. Among the most prominent was Justice JS Khehar’s refusal to step aside in the NJAC Constitution Bench proceedings, despite objections based on his prior engagement with judicial appointments. The decision was widely seen as a rejection of forum shopping.

 

Similarly, Justice Arun Mishra’s decision not to recuse in the Indore Development Authority case triggered debate over perceived predisposition, as the matter involved reconsideration of a legal position linked to an earlier ruling. More recently, controversies surrounding recusals, and refusals to recuse, in politically sensitive cases.

 

Last year in September, a total of 15 judges across various courts and tribunals had recused themselves from hearing matters involving Ramon Magsaysay Award-winning Indian Forest Service (IFS) officer, Sanjiv Chaturvedi. This was in a contempt case filed by Chaturvedi against members of the Central Administrative Tribunal (CAT).

 

A doctrine in balance

 

At its core, the law on recusal in India remains a judge-made doctrine—fluid, context-specific, and deeply rooted in constitutional morality. It seeks to reconcile two competing imperatives: ensuring that justice is not only done but seen to be done, while preventing litigants from manipulating the system.

 

“The balance is delicate—fairness versus judicial duty,” Arora said.

 

In the absence of codified rules, that balance continues to rest on the conscience of the judge and the watchful eye of constitutional principles.